IUT/Oncologix Asset Purchase Agreement
EXHIBIT 99.2
ASSET PURCHASE AGREEMENT
The parties to this ASSET PURCHASE AGREEMENT, dated as of August 18, 2008 ("this
Agreement"), are Oncologix Tech, Inc. a Nevada corporation ("Oncologix") and
Institut fur Umwelttechnologien GmbH, a German Company ("IUT"). The parties have
agreed as hereinbelow provided.
RECITALS
1.1 Background.
As used in this Agreement, "Oncologix" includes Oncologix Corporation, a Nevada
corporation that is the wholly owned subsidiary of Oncologix. Oncologix agrees
that whenever necessary it will cause Oncologix Corporation to act to fulfill
the obligations of Oncologix under this Agreement. Oncologix has heretofore
conducted a medical device business whose activities, to the extent material to
this Agreement, have been related to the development and testing of a certain
microsphere device called the "Oncosphere". The Oncosphere embodies technology
owned by the University of Maryland and licensed to Oncologix pursuant to a
certain Master License Agreement, a copy of which has heretofore been delivered
to IUT, and certain proprietary improvements, modifications and additional
technology developed by Oncologix.
1.2 Purpose of this Agreement.
IUT wishes to purchase all of the assets, including without limitation the
rights of Oncologix under the Master License Agreement, and assume all of the
liabilities of Oncologix that are related to the Oncosphere, including the
obligations of Oncologix under the Master License Agreement, and Oncologix
wishes to sell such assets and assign its rights under the Master License
Agreement to IUT pursuant to the terms and conditions of this Agreement.
THE TRANSACTION
2.1 Purchase and Sale of Assets.
Upon and subject to the terms and conditions hereof, Oncologix shall sell and
IUT shall purchase and acquire from Oncologix, all right, title and interest in
and to the assets (the "Assets") listed and described on Schedule 2.1, in each
case subject to all liens, charges, security interests, restrictions and other
encumbrances arising out of the Assumed Liabilities (hereinbelow defined), and
will apply them to the continued development and commercialization of the
Oncosphere as described in IUT's business plan dated May 29, 2008 (the "Business
Plan"), a copy of which has heretofore been delivered to Oncologix.
2.2 Assumption of Specified Liabilities.
At the Closing (hereinbelow defined), IUT shall agree to assume and perform
after the Closing when and as they become due the liabilities of Oncologix that
are listed and described on Schedule 2.2 (the "Assumed Liabilities") and no
others.
2.3 Formation of New Entity by IUT.
Without limiting any of the obligations of IUT under this Agreement, it is
understood that for the purposes of implementing its performance of such
obligations it will form, under German law, a new Gesellschaft mit beschranker
Haftung called "IUT Medical Gmbh" (hereinafter "IUTM") or, if that name is not
available, such other name as IUT may determine in its reasonable discretion, to
hold the Assets and to complete the development and commercialization of the
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IUT/Oncologix Asset Purchase Agreement
Oncosphere and other radiation-based medical products as the occasion may arise,
as described in the Business Plan (hereinabove defined). As of the Closing the
Articles of Association (Gesellschaftsvertrages) and the financial condition of
IUTM shall conform to the description thereof set forth in Article 3 of this
Agreement.
2.4 Consideration.
As consideration for the sale of the Assets by Oncologix to IUT, IUT shall at
the Closing: Pay to Oncologix in cash the sum of $50,000; Assume, discharge and
hold Oncologix harmless from the Assumed Liabilities; and Cause IUTM to issue
and sell to Oncologix, in consideration of this Agreement, not less than twenty
percent (20%) of the duly and validly issued voting equity membership interest
of IUTM, fully paid and non-assessable, such issuance to be evidenced by the
delivery to Oncologix a certificate in a form which shall be reasonably
acceptable to counsel to Oncologix.
2.5 Closing.
The Closing shall occur at the offices of Firetag, Stoss & Dowdell, P.C., 1747
East Morten Avenue, Suite 107, Phoenix, AZ 85020 at 10:00 a.m. on the date on
which all necessary consents to the consummation of this Agreement shall be
obtained (the "Closing Date") or on such other date or at such other location(s)
or starting at such other time as the parties shall agree. At the Closing, each
of the parties shall execute and deliver such further agreements or instruments
as the other party shall reasonably request including without limitation the
deliveries specified in this Agreement.
3. ORGANIZATION, FINANCING AND OPERATION OF IUTM
The provisions of this Article 3 reflect the intention of the parties to this
Agreement with respect to the formation, organization and operation of IUTM and
all of the organization documents of IUTM shall be interpreted so as to be
consistent with these provisions. In the event of any apparent conflict between
such organization documents and this Article 3, the provisions of this Article
shall govern.
3.1 Business Purpose of IUTM.
The business purpose of IUTM shall be to continue the development and
commercialization of the Oncosphere product as described in the Business Plan
and to acquire, develop and commercialize additional products involving the use
of radiation for medical purposes.
3.2. Units of Ownership Interests.
(a) The ownership interest in IUTM shall be divided into five (5) equal
ownership units ("Units"), each representing twenty percent (20%) of the total
ownership interest. When duly issued in accordance with Article 3 of this
Agreement, each Unit shall be fully paid and non-assessable. The voting power of
IUTM shall be allocated among the owners of IUT in proportion to their
respective ownership interests; that is, the holder of each Unit shall have
twenty percent (20%) of the total voting power of IUTM. Upon any dissolution or
liquidation of IUTM, the assets of IUTM shall be distributed among the owners in
proportion to the number of Units held by each. The vote of 75% of the ownership
interest shall be required for a decision to sell IUTM or substantially all of
its assets.
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IUT/Oncologix Asset Purchase Agreement
3.3 Issuance and Reservation of Units.
The Units shall be issued or reserved for issuance as follows:
Two Units (a 40% interest) shall be issued and sold to IUT in
consideration of its capital contribution of (euro)500,000 to be available
for the operating expenses of IUTM and IUT's agreement to perform as
further provided in Article 3 and elsewhere in this Agreement;
One Unit (a 20% interest) shall be issued and sold to Oncologix in
consideration of its agreement to enter into and perform under this
Agreement; and
Two Units (a 40% interest in the aggregate) shall be reserved for
issuance and sale to future investors in IUTM and/or as compensation to key
employees, consultants, suppliers and the like as may be determined from
time to time by the members (shareholders) of IUTM.
3.4 Performance by IUT.
In further consideration of the issuance of Units to Oncologix as provided above
and of its entry into this Agreement, IUT, will (i) at its sole expense,
organize IUTM, select and recruit its personnel, (ii) furnish IUTM, at IUT's
cost therefor, with the facilities necessary and appropriate to the conduct of
business by IUTM as described in the Business Plan, (iii) sell raw materials to
IUTM at a price equal to its own direct manufacturing and overhead costs, (iv)
make available to IUTM intellectual property owned by or licensed to IUT
necessary or useful in the conduct of business by IUTM, (v) the use of IUT's
licenses and permits necessary for the handling and processing of radioactive
materials and (vi) grant to IUTM the right to act as the exclusive worldwide
distributor of IUT's Yttrium90 (Y90)-based products to customers in the medical
device industry.
3.5 Royalty.
In further consideration for its entry into and performance under this
Agreement, Oncologix will have the right to a royalty equal to three percent
(3%) of the total Net Sales of IUTM. As used herein, "Net Sales" shall mean the
gross sales revenues and fees received by IUTM or an Affiliate for any products
or services, less the sum of the following: customary trade, quantity and cash
discounts actually allowed and taken; sales or use taxes, excise taxes and
customs duties and other governmental charges included in the invoiced amount;
outbound transportation, shipping and insurance, prepaid or allowed, if
separately itemized on the invoice to the customer; and amounts actually allowed
or credited on returns or rejections of products or services or billing errors.
Net Sales does not include any resales of products after sale by IUTM or an
Affiliate to a third party purchaser. In computing Net Sales, (i) no deductions
from gross revenues and fees will be made for commissions paid to individuals,
whether they be with independent sales agents or regularly employed on the
payroll by IUTM or its Affiliate(s) or for cost of collections, and (ii)
products and services will be considered sold when billed or invoiced, whichever
is first. As used herein, "Affiliate" means any entity which directly or
indirectly controls, is controlled by, or is under common control with IUTM.
"Control" means the right to exercise more than 50% of the voting rights of a
controlled corporation, limited liability company, or partnership, or other
entity or the power to direct or cause the direction of the management or
policies of any other controlled entity.
3.6 Royalty Payments and Reports.
The royalty specified above shall be paid in cash on a quarterly basis. Payments
shall be due and payable twenty (20) days after the fiscal quarter of IUTM
during which such royalty accrued. Each payment shall be accompanied by a
written report, certified as correct by the Chief Executive Officer and Chief
Financial Officer of IUTM, stating the amount of Net Sales, by product if
payable on the Net Sales of more than one product, during such quarter and the
calculation by which the amount of royalty payments were determined.
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IUT/Oncologix Asset Purchase Agreement
3.7 Transferability of Units.
An owner may sell or otherwise transfer Units provided that IUTM and the then
other owners will have the right to purchase such interest at the price and
under the terms offered by a bona fide third party. In the event of the death,
insolvency or liquidation of an owner, IUTM has the right to purchase the
interest of such owner at its then fair value. In the event of a dispute as to
such value, the matter shall be resolved in accordance with the arbitration
provisions of this Agreement.
3.8 Co-Sale.
If IUT should determine to sell or otherwise dispose of all or any part of to
sell all or any part of its interest in IUTM (other than sales or other
dispositions to its Affiliates), it shall (i) give Oncologix prompt notice of
such determination and (ii) at least twenty five (25) business days before
entering into a proposed binding agreement for such sale or other disposition,
deliver a copy of such binding agreement to Oncologix. Oncologix shall have
twenty (20) business days after its receipt thereof to elect, by providing
written notice to the IUT, to require the purchaser of the IUT's interest to
purchase a percentage of Oncologix's interest (determined as set forth below) in
IUTM on the same terms and conditions (including, without limitation, the same
purchase price per percentage point of ownership interest in IUTM) set forth in
the agreement between the IUT and the purchaser ("Co-Sale Rights"). For purposes
of the preceding sentence, in connection with any proposed sale, Oncologix may
exercise Co-Sale Rights with respect to the same percentage of its ownership
interest as IUT's ownership interest to be sold in the contemplated transfer
(e.g., if IUT has a 40% Sharing Ratio and is selling all of its owner interest,
100% of IUT's membership interest, is being sold, then Oncologix is entitled to
sell all (100%) of its ownership interest. If the payment for IUT's interest
includes consideration other than cash, IUT, Oncologix and the purchaser shall
agree upon the cash value of the sale and all consideration paid from the
purchaser to the Oncologix for Oncologix's interest shall be in cash. Any
disagreement between IUT and Oncologix concerning the cash value of the sale
shall be resolved in accordance with the arbitration provisions of this
Agreement. In the event Oncologix elects to exercise its Co-Sale Rights pursuant
to this Section 3.8, and the purchaser refuses to purchase Oncologix's interest
in IUTM as provided above, IUT shall not sell its interest to the purchaser
without the written consent of Oncologix, which consent may be withheld in the
sole discretion of Oncologix.
3.9 Information and Reports.
Each owner shall be entitled to receive the annual financial statements of IUTM,
certified as correct by an independent accountant in the manner customary under
German practice and such further information as such owner may from time to time
reasonably request. It is understood that financial information of IUTM is
expected to be material to Oncologix's own financial reports to its shareholders
and to government agencies.
3.9 Records.
IUT shall keep true and accurate books of account and records sufficient to
determine and establish the royalties payable to Oncologix under the Agreement
and compliance with the other terms and conditions of this Agreement. Such books
and records shall be kept reasonably accessible for three (3) years following
the end of the calendar quarter to which they pertain and shall be made
available for inspection throughout such three (3) year period by an independent
third party auditor selected by Oncologix for such purposes in accordance with
Section 3.10, below.
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IUT/Oncologix Asset Purchase Agreement
3.10 Audits.
Upon the written request of Oncologix and not more than once in each calendar
year, IUT and IUTM shall permit an independent certified public accounting firm
(or other auditor in the case of audits for compliance with license
restrictions) of an internationally recognized standing selected by Oncologix
and reasonably acceptable to IUT and IUTM, at Oncologix's expense, to have
access during normal business hours, and upon reasonable prior written notice,
to those records of IUTM as may be reasonably necessary to verify the accuracy
of any financial reports to Oncologix with respect to the preceding three (3)
years. The auditor shall have the right to inspect all agreements and other
documents relevant to confirm compliance with the royalty provisions of the
Agreement. The accounting firm or auditor will disclose to Oncologix whether the
reports are correct or incorrect and, if incorrect, the amount by which the
reports reveal any underpayment to Oncologix and the reason for such
underpayment. If the accounting firm or other auditor believes IUTM has not
complied with the Agreement, the auditor will so notify IUTM in writing and the
auditor will discuss the matter with IUTM in good faith for sixty (60) days
after receipt of such notice. If the auditor remains convinced that IUTM has not
complied with the royalty provisions of the Agreement, after such discussion,
and IUTM has not agreed to take action which the auditor agrees would remedy
such noncompliance, then the auditor shall disclose to Oncologix the financial
terms of the agreements between IUTM and the non-Affiliate third parties which
are material to such noncompliance. The parties shall resolve any dispute in
accordance with the arbitration provisions of this Agreement.
3.11. Additional Payments; Cost Reimbursement.
If such accounting firm concludes that additional payments were owed to
Oncologix by IUTM during such period, then IUTM shall pay the additional
payments, with interest from the date originally due at an amount equal to the
lesser of the prime rate plus two percent (2%), as published in The Wall Street
Journal, Eastern U.S. Edition, on the last business day preceding such date, or
the maximum amount permitted by applicable law, within thirty (30) days after
the date Oncologix delivers to IUTM such accounting firm's written report unless
the additional payment is disputed by IUTM. If the amount of the underpayment
during any period one (1) year period is greater than ten percent (10%) of the
total amount owed for that year and greater than Ten Thousand United States
Dollars ($10,000), then IUTM shall, in addition, reimburse Oncologix for its
reasonable costs related to such audit.
3.12 Financial Condition of IUTM.
At the Closing, the assets of IUTM shall consist of the Assets acquired pursuant
to this Agreement together with (euro)500,000 and IUTM
shall have no liabilities.
4. REPRESENTATIONS AND WARRANTIES OF ONCOLOGIX
Oncologix represents and warrants to IUT that:
4.1 Organization.
Oncologix is a corporation duly organized, validly existing and in good standing
under the laws of the State of Nevada and qualified to do business as a foreign
corporation in each jurisdiction in which failure to do so would have a
materially adverse effect on their business and assets.
4.2 Authority for Transaction.
Subject to the due approval of its shareholders as provided by law, Oncologix
has the full right, power and authority (including full corporate power and
authority) to execute and deliver this Agreement and to perform Oncologix's
obligations hereunder, and to carry out the transactions contemplated in this
Agreement, except as may be limited by bankruptcy, insolvency, reorganization,
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IUT/Oncologix Asset Purchase Agreement
moratorium or other similar laws affecting creditors' rights generally. When
duly approved by its shareholders, this Agreement will constitute the valid and
legally binding obligation of Oncologix, enforceable in accordance with its
terms and conditions.
4.3 No Violation or Conflict.
Except as otherwise disclosed on Schedule 4.3 hereto, neither the execution and
the delivery of this Agreement, nor the consummation of the transactions
contemplated hereby (including the assignments and assumptions referred to in
Article 2 above), will (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which Oncologix is subject or any
provision of the Articles of Incorporation or By-laws of Oncologix.
4.4 Broker's Fees
Oncologix has no liability or obligation to pay any fees or commissions to any
broker, finder or agent with respect to the transactions contemplated by this
Agreement for which IUT could become liable or obligated.
4.5 No Litigation.
There are no actions, suits or proceedings pending, or, to the knowledge of
Oncologix, threatened or anticipated before any court or governmental or
administrative body or agency affecting the Assets, except as set forth on
Schedule 4.5 hereto. Oncologix is not presently subject to any injunction, order
or other decree of any court of competent jurisdiction which affects the Assets.
5. REPRESENTATIONS AND WARRANTIES OF IUT
IUT represents and warrants to Oncologix that:
5.1 Organization.
At the date of this Agreement IUT is and will be at the Closing a Gesellschaft
mit beschranker Haftung validly existing and in good standing under the laws of
Germany and IUTM will at the Closing be a Gesellschaft mit beschranker Haftung,
validly existing and in good standing under the laws of Germany and the above
described Articles of Association or their equivalent under German law.
5.2 Authority
IUT has the full right, power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. Without limiting the
generality of the foregoing, IUT's Board of Managers has duly authorized the
execution, delivery, and performance of this Agreement by IUT. The Agreement
constitutes the valid and legally binding obligation of IUT, enforceable in
accordance with its terms and conditions, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally.
5.3 No Violation or Conflict.
Neither the execution and the delivery of this Agreement, nor the consummation
of the transactions contemplated hereby (including without limitation the
provisions of Article 3, above), will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which IUT is
subject or any provision of the IUT's Operating Agreement or Oncosphere Gmbh's
Articles of Incorporation or Bylaws or their equivalent under German law, or
(ii) conflict with, result in a breach or constitute a default under, result in
the acceleration of, create in any party the right to accelerate, terminate,
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IUT/Oncologix Asset Purchase Agreement
modify, or cancel, or require any notice under any agreement, contract, lease,
license, instrument, or other arrangement to which IUT is a party or by which it
is bound or to which any of its assets is subject, except where the violation,
conflict, breach, default, acceleration, termination, modification,
cancellation, or failure to give notice, would not have a Material adverse
effect on the financial condition of IUT taken as a whole or on the ability of
the parties to consummate the transactions contemplated by this Agreement.
5.4 No Litigation.
There are no actions, suits or proceedings pending, or to IUT's knowledge,
threatened or anticipated before any court or governmental or administrative
body or agency affecting IUT, its property, or its ability to consummate the
transaction contemplated by this Agreement.
5.5 Broker's Fees.
IUT has no liability or obligation to pay any fees or commissions to any broker,
finder or agent with respect to the transactions contemplated by this Agreement
for which Oncologix could become liable or obligated.
5.6 Accuracy of Representations or Warranties.
All of IUT's warranties and representations as hereinabove stated shall be true
on the Closing Date and the same shall survive the Closing and be deemed
incorporated, whether explicitly stated therein or not, into all documents or
other instruments delivered by IUT to Oncologix at the Closing. No
representation, warranty, or statement of IUT omits or will omit to state any
material fact necessary to make such representation, warranty, or statement in
this Agreement accurate and not misleading in any material respect.
5.7 Acknowledgements.
IUT and certain of its personnel were, during the period from approximately
October 2006_ until December 31, 2007, engaged by Oncologix as consultants in
the acquisition and use of equipment, conducting development and testing
activities with respect to the Oncosphere. IUT acknowledges that THE ASSETS ARE
BEING SOLD AND DELIVERED TO IUT "AS IS" AND "WHERE IS", and that ONCOLOGIX MAKES
NO WARRANTY WHATSOEVER WITH RESPECT TO THE ASSETS INCLUDING THOSE OF TITLE,
MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE.
5.8 Lawful Conduct of Business.
IUT (which includes for all purposes hereof, IUTM), (a) owns or possesses
sufficient legal rights to all patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses, information, and proprietary rights and
processes necessary for its business as now conducted and as proposed to be
conducted as described in the Business Plan without any known conflict with, or
infringement of, the rights of others, (b) has conducted, is conducting and will
conduct its business as described in the Business Plan so as to comply in all
material respects with all applicable statutes and regulations and (c) has all
requisite power and authority, and all necessary authorizations, approvals and
orders of and from all governmental regulatory officials and bodies, to own its
properties and conduct its business as now conducted and as proposed to be
conducted as described in the Business Plan.
6. ADDITIONAL COVENANTS
The parties agree as follows with respect to the period after the Closing:
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IUT/Oncologix Asset Purchase Agreement
6.1 Information Concerning IUT and IUTM.
Without limiting any rights which Oncologix (which term for the purposes of this
paragraph shall include its affiliates, successors or assigns) may have as a
member or shareholder of IUTM, and while Oncologix continues as such member or
shareholder, IUT and IUTM (whichever shall be appropriate) shall promptly
furnish to Oncologix, as it may reasonably request, such information in the
English language, including without limitation financial statements prepared in
accordance with generally accepted accounting principles, as shall be required
to permit Oncologix to report a proper value of its interest in IUTM. IUT
acknowledges (i) that Oncologix is registered with the United States Securities
and Exchange Commission pursuant to the Securities Exchange Act of 1934 and is
required to report regularly on its financial condition and prospects, (ii) that
for the foreseeable future its interest in IUTM will be material to its own
financial condition and prospects, (iii) that Oncologix will rely on the
accuracy of information so furnished in preparing and filing reports under that
Act and (iv) that any false or misleading statement in such reports may result
in civil and/or criminal penalties.
6.2 Further Agreements.
The parties will, at the Closing, execute and deliver such additional agreements
as they shall determine with respect to such matters as marketing rights,
royalties, etc. when executed, such additional agreements shall be attached to
this Agreement as Exhibit 6.2.
7. CONDITIONS TO THE OBLIGATIONS OF THE PARTIES
The respective obligations of each party to this Agreement to effect the
transactions contemplated hereby shall be subject to the satisfaction at or
prior to the Closing of the following conditions:
7.1 Shareholder Approval.
This Agreement and the transactions contemplated hereby shall have been duly
approved and adopted by the shareholders of Oncologix.
7.2 No Injunctions or Restraints: Illegality.
No temporary restraining order, preliminary or permanent injunction or other
order issued by any court of competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the transactions shall be in effect,
nor shall any proceeding brought by an administrative agency or commission or
other governmental authority or instrumentality, domestic or foreign, seeking
any of the foregoing be pending; nor shall there be any action taken, or any
statute, rule, regulation or order enacted, entered, enforced or deemed
applicable to the transaction, which makes the consummation of the transaction
illegal.
7.3 Additional Conditions to the Obligations of Oncologix.
The obligations of Oncologix to consummate and effect this Agreement and the
transactions contemplated hereby shall be subject to the satisfaction at or
prior to the Closing of each of the following conditions, any of which may be
waived, in writing, exclusively by Oncologix:
(a) Representations, Warranties and Covenants.
The representations and warranties of IUT in this Agreement shall be true
and correct in all material respects on and as of the Closing as though such
representations and warranties were made on and as of such time and IUT shall
have performed and complied in all material respects with all covenants,
obligations and conditions of this Agreement required to be performed and
complied with by them as of the Closing.
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IUT/Oncologix Asset Purchase Agreement
(b) Certificate of IUT.
Oncologix shall have been provided with a certificate executed on behalf of
IUT and IUTM by their respective Presidents and Chief Financial Officers or
Treasurers to the effect that, as of the Closing: (i) all representations and
warranties made by IUT under this Agreement are true and complete in all
material respects; (ii) all covenants, obligations and conditions of this
Agreement to be performed by IUT on or before such date have been so performed
in all material respects and that to the best of their knowledge, after having
consulted with legal counsel and auditors, IUTM has been duly organized and
financed as provided in this Agreement and, except as disclosed in Schedule
7.3(b) attached hereto, has sufficient resources to conduct business as
described in the Business Plan.
(c) Satisfactory Form of Legal Matters.
The form, scope and substance of all legal and accounting matters
contemplated hereby and all closing documents and other papers delivered
hereunder shall be reasonably acceptable to counsel to Oncologix.
(d) Legal Opinion.
Oncologix shall have received a legal opinion from counsel to IUT,
satisfactory in form and substance to Oncologix to the effect that IUT has the
full right, power and authority to execute and deliver this Agreement and to
perform its obligations hereunder, that the execution, delivery, and performance
of this Agreement by IUT has been duly authorized by all necessary corporate
action, that this Agreement constitutes the valid and legally binding obligation
of IUT, enforceable in accordance with its terms and conditions, except as may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally, and that neither the
execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby (including without limitation the provisions of
Article 3, above), will (i) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which IUT is subject or any
provision of the IUT's Operating Agreement or Oncosphere Gmbh's Articles of
Incorporation or Bylaws or their equivalent under German law, or (ii) conflict
with, result in a breach or constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which IUT is a party or by which it is bound
or to which any of its assets is subject, except where the violation, conflict,
breach, default, acceleration, termination, modification, cancellation, or
failure to give notice, would not have a material adverse effect on the
financial condition of IUT taken as a whole or on the ability of the parties to
consummate the transactions contemplated by this Agreement.
(f) No Material Adverse Changes.
There shall not have occurred any event, fact or condition that has had or
reasonably would be expected to have a material adverse effect on IUT.
7.4 Additional Conditions to the Obligations of IUT.
The obligations of IUT to consummate and effect this Agreement and the
transactions contemplated hereby shall be subject to the satisfaction at or
prior to the Closing of each of the following conditions, any of which may be
waived, in writing, exclusively by IUT:
(a) Representations, Warranties and Covenants.
The representations and warranties of Oncologix in this Agreement shall be
true and correct in all material respects on and as of the Closing as though
such representations and warranties were made on and as of such time and
Oncologix shall have performed and complied in all material respects with all
covenants, obligations and conditions of this Agreement required to be performed
and complied with by it as of the Closing.
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IUT/Oncologix Asset Purchase Agreement
(b) License Modification.
The Master License Agreement between Oncologix and the University of
Maryland, Baltimore, originally dated September 16, 2003 and modified by an
Agreement and Consent, dated July 26, 2006, shall have been duly assigned to
IUTM and shall have been modified to the reasonable satisfaction of IUT.
(c) Certificate of Oncologix.
IUT shall have been provided with a certificate executed on behalf of
Oncologix by its President and Chief Financial Officer to the effect that, as of
the Closing: (i) all representations and warranties made by Oncologix under this
Agreement are true and complete in all material respects; and (ii) all
covenants, obligations and conditions of this Agreement to be performed by
Oncologix on or before such date have been so performed in all material
respects.
(e) Satisfactory Form of Legal and Accounting Matters.
The form, scope and substance of all legal matters contemplated hereby and
all closing documents and other papers delivered hereunder shall be reasonably
acceptable to the IUT's counsel.
(f) Legal Opinion.
IUT shall have received a legal opinion from legal counsel to Oncologix,
satisfactory in form and substance to IUT to the effect that Oncologix is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada and qualified to do business as a foreign corporation in
each jurisdiction in which failure to do so would have a materially adverse
effect on their business and assets, that Oncologix has the full right, power
and authority (including full corporate power and authority) to execute and
deliver this Agreement and to perform Oncologix's obligations hereunder, and to
carry out the transactions contemplated in this Agreement, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and that this Agreement constitutes
the valid and legally binding obligation of Oncologix, enforceable in accordance
with its terms and conditions.
8. GENERAL AND MISCELLANEOUS
8.1 Expenses.
Except as otherwise provided in this Agreement, IUT and Oncologix each agree to
pay, without right of reimbursement from any other, the costs incurred by such
party incident to the preparation and execution of this Agreement and
performance of their respective obligations hereunder, whether or not the
transactions contemplated by this Agreement shall be consummated, including,
without limitation, the fees and disbursements of legal counsel, accountants and
consultants employed by the respective parties in connection with the
transactions contemplated by this Agreement; provided, however, that IUT shall
pay sales and other transfer taxes, if any.
8.2 Assignability.
Neither party may assign or transfer its rights and obligations under this
Agreement without the prior written approval of the other party; provided,
however, Oncologix may assign its rights under this Agreement to an affiliate of
Oncologix or as security to any of its lenders. This Agreement shall inure only
to the benefit of and be binding upon the parties hereto and their respective
successors and representatives and permitted assigns.
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IUT/Oncologix Asset Purchase Agreement
8.3 Applicable Law.
This Agreement shall be construed, interpreted and enforced in accordance with,
and governed by, the laws of the State of Arizona without reference to any
doctrine of the conflict of laws.
8.4 Counterparts.
This Agreement may be executed in one or more counterparts, each of which will
be deemed an original, but all of which together shall constitute the same
instrument.
8.5 Entire Agreement.
This Agreement and the agreements, instruments, schedules and other writings
referred to in this Agreement contain the entire understanding of the parties
with respect to the subject matter of this Agreement. There are no restrictions,
agreements, promises, warranties, covenants or undertakings other than those
expressly set forth herein or therein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter. It may not be amended, changed or terminated orally, and no attempted
change, termination or waiver of any of the provisions hereof shall be binding
unless in writing and signed by the party against whom the amendment, change,
termination or waiver is sought to be enforced.
8.6 Schedules and Exhibits.
Each exhibit hereto shall be attached hereto and shall be considered a part
hereof as if set forth in the body hereof in full.
8.7 Disputes.
Any dispute, disagreement, claim or controversy arising out of or relating to
this Agreement, any document or instrument delivered pursuant to, in connection
with, or simultaneously with this Agreement, or any breach of this Agreement
("Dispute") shall be subject to the negotiation, mediation and arbitration
provisions contained herein. Each party to a Dispute shall make every reasonable
effort to meet in person and confer for the purpose of resolving the Dispute by
good faith negotiation before resorting to any legal proceedings or any other
dispute resolution procedure. If the Dispute cannot be settled through
negotiation, the parties shall make every reasonable effort to settle the
Dispute by mediation by a single mediator qualified to consider the matter in
dispute before resorting to any legal proceedings or any other dispute
resolution procedure. If a Dispute cannot be settled through mediation, the
Dispute shall be finally settled by arbitration to be held in Phoenix, Arizona,
under the Rules of Commercial Arbitration of the American Arbitration
Association by a panel of three (3) arbitrators qualified to consider the matter
in dispute. The arbitrators may grant injunctions or other relief in such
dispute or controversy. The decision of a majority of the arbitrators shall be
final, conclusive and binding upon the parties to the arbitration; and any party
shall be entitled to cause judgment on the decision or award of the arbitrators
to be entered in any court of competent jurisdiction. Any party may initiate a
mediation or an arbitration by providing written notice of the mediation or
arbitration, as the case may be (the "Dispute Notice"), to the other parties,
which Dispute Notice shall state the name of initiating party, briefly state the
matter to be mediated or arbitrated, and, if applicable, name a person whom such
party has nominated to act as mediator. If, within thirty (30) days after the
date of the Dispute Notice, the parties have not agreed among themselves as to
the identity of the mediator, then any party may immediately refer this matter
for resolution by the American Arbitration Association. The parties shall each
pay their pro rata share (according to the number of parties involved in the
Dispute) of the costs, deposits and expenses of the mediator. The party
initiating the arbitration shall pay the costs, deposits and expenses of such
arbitration and the prevailing party shall be awarded its attorneys' fees and
expenses in addition to all other relief awarded by the arbitrators, provided
that if the arbitrators determine that a party has initiated an arbitration
without a reasonable basis for doing so, then the arbitrators shall assess
against that party all costs relating to the arbitration, including the
attorneys' fees and expenses of the other parties.
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IUT/Oncologix Asset Purchase Agreement
8.8 Notices.
All notices, consents, requests, instructions, approvals or other communications
required or permitted to be given hereunder, shall be in writing, addressed as
shown below, or to such other address as any party hereto may, from time to
time, designate in writing, by courier, facsimile (fax) or electronic mail.
Notice may be given via fax, and shall be deemed given when transmission has
been successfully completed and electronic confirmation of such facsimile
transmission is received by the party giving notice. Notices not faxed shall be
deemed given when actually delivered by the courier service. Any notice which is
attempted to be delivered by electronic mail shall not be valid notice
hereunder, unless acknowledgment of receipt of such electronic mail by the
recipient is transmitted to and received by the sender within twenty-four (24)
hours of its delivery.
Oncologix Tech, Inc.
P.O. Box 8832
Grand Rapids, MI 49518-8832
Telephone: (616) 977-9933
Fax: (616) 977-9955
Email: mkramarz@oncologix.biz
With a copy to:
Stephen T. Meadow, Esq.
Firetag, Stoss & Dowdell, P.C.
1747 East Morten Avenue, Suite 107
Phoenix, Arizona 85020
Telephone: (602) 997-1182
Fax: (602) 997-5319
Email: stmeadow@earthlink.net
Institut fur Umwelttechnologien GmbH
Volmerstrasse 7B
D-12489 Berlin HRB 46 572
Germany
Phone: +49 30 6392-5511
Fax: +49 30 6392-4831
Email: j.leonhardt@iut-berlin.com
8.9 Publicity.
The parties shall agree upon the form and substance of (a) a joint press release
or other public announcement of this Agreement and the transactions contemplated
hereby and (b) other matters including related to this Agreement or any of the
transactions contemplated hereby which shall be released on or after the
Closing; provided, however, that nothing in this Agreement shall be deemed to
prohibit any party hereto from making any disclosure which its counsel deems
necessary or advisable in order to fulfill such party's disclosure obligations
imposed by law or contract.
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IUT/Oncologix Asset Purchase Agreement
8.10 Severability.
If any term, condition or provision of this Agreement shall be declared invalid
or unenforceable, the remainder of the Agreement, other than such term,
condition or provision, shall not be affected thereby and shall remain in full
force and effect and shall be valid and enforceable to the fullest extent
permitted by law.
8.11 Survival of Representations and Warranties.
All covenants, representations and warranties made by the parties in this
Agreement or any certificate or other writing delivered by them or any of their
respective Affiliates pursuant hereto or in connection herewith shall survive
the Closing and any investigation at any time made by or on behalf of the other
party.
8.12 Further Assurances.
From time to time after the Closing, Oncologix will execute and deliver, or
cause its affiliates to execute and deliver, to IUT such instruments of sale,
transfer, conveyance, assignment and delivery, and such consents, assurances,
powers of attorney and other instruments as may be reasonably requested by IUT
or its counsel in order to vest in IUT all right, title and interest of
Oncologix in and to the Assets and otherwise in order to carry out the purpose
and intent of this Agreement.
8.13 Superior Offer.
in the event that Oncologix should receive an unsolicited proposal that its
Board of Directors has in good faith concluded (after consultation with its
legal counsel) that such proposal will lead to a superior offer and that the
failure to consider such proposal would be inconsistent with its fiduciary
obligations under applicable law, Oncologix will be permitted to: (i) furnish
nonpublic information to the third party making such proposal, and (ii) engage
in negotiations with the third party with respect to the proposal. Further, if
after consultation with legal counsel and a financial advisor, the Board of
Directors determines that the proposal constitutes a superior offer, the Board
of Directors will be permitted to withdraw its recommendation to the
stockholders to approve this transaction and enter into an agreement with
respect to the proposal.
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be duly
executed as of the day and year first above written.
Institut fur Umwelttechnologien GmbH
By: _______________________________
Its: _______________________________
Attested By: _________________________
Secretary
Oncologix Tech, Inc.
By: _______________________________
Its: President and Chief Executive Officer
Attested By: _________________________
Secretary
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Schedule 2.1
Asset List
Attached hereto is the list of Assets to be transferred
14
Schedule 2.2
Assumed Liabilities List
Attached hereto is the list of Liabilities to be assumed by IUT.
15
Schedule 4.3
Exceptions to No Violations or Conflicts Representation of Oncologix
None.
16
Schedule 4.4
Exceptions to No Litigation Representation of Oncologix
None.
17